TORTURE: ASIAN AND GLOBAL PERSPECTIVES | JUNE 2014
VOLUME 03 NUMBER 03
BEYOND THE TIEWIG
The reality is appointments, transfers, and disciplinary actions against police officers are still made based on political affinities. Not all states have constituted the Police Complaints’ Authority. In places where the authorities were established, they are non-functional or are lacking resources, and the authority remains only on paper.
by BIJO FRANCIS
IN a writ petition filed before the High Court of Kerala, the petitioner, Mr. Sajith, has requested the court to direct the Central Bureau of Investigation (CBI) to investigate the infamous Payoli Manoj murder case. The petitioner has sought that the court should direct the Government of Kerala to hand over the case diary to the CBI, and has alleged that the investigating officer in the case, a Sub-Inspector of Police, is in fact the local committee leader of the Communist Party of India (Marxist), the political party that is accused of conspiracy to murder Manoj. Manoj was murdered on 12 February 2012.
While hearing the case, the presiding judge, Justice K. Ramakrishnan, expressed concerns that politicisation of the police has potential to damage discipline within the force and further destroy it. The judge further said that ordinary people are fast losing faith in their police due to crimes officers commit with impunity and the political bias police display as an institution, often favouring the political party in power.
Strictures against the police by the judiciary, pointing out deep wilt within the institution, is not new. An early instance, where the judiciary has made adverse remarks against shoddy and corrupt policing, was in 1978. Justice V. R. Krishna Iyyer, in the Nandini Satpathy case, said that the practice of summoning women witnesses to the police station for questioning is prohibited under Section 160 (1) of the Criminal Procedure Code, 1973 (Cr.P.C.). The court further ruled that the prohibitive sweep of Article 20 (3) on self-incriminating evidence in the constitution applies from the stage of investigation and not just at the trial stage.
The Supreme Court has subsequently reaffirmed this position on at least two-dozen occasions. The principle of the burden of proof laid down in English criminal law “… [i]s a golden thread always to be seen, that it is the duty of the prosecution to prove the guilt against the accused …” is the law in India. This has been re-affirmed by the 180th report of the Law Commission of India, submitted to the Union Law Ministry in 2002.
However, custodial torture and confession extracted through torture remains the foundation of police criminal investigation in India. On custodial torture, in 1981, the Supreme Court of India said: “[n]othing is more cowardly and unconscionable than a person in police custody being beaten up and nothing inflicts deeper wound on our constitutional culture than a state official running berserk regardless of human rights.”
Evolving further into a position of absolute prohibition of torture, the Supreme Court, in 1996, laid down mandatory procedures that a crime-investigating agency must follow, while executing arrest, detaining a person in custody, and further questioning detainees or witnesses.
These procedures include:
the police personnel carrying out the arrest and handling the interrogation of the arrestee should wear accurate, visible, and clear identification and name tags with their designation. The particulars of all such police personnel who handle interrogations of the arrestee must be recorded in a register;
the police officer carrying out the arrest shall prepare a memo of the arrest at the time of the arrest and such memo shall be attested by at least one witness who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest;
a person who has been arrested or detained and is being held in custody in a police station or interrogation centre or another lockup shall be entitled to have one friend or relative or another person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place unless an attesting witness of the memo of arrest is himself such a friend or relative of the arrestee;
where the next friend or relative of the arrestee lives outside the district or town, they must be notified, telegraphically, of the time and place of arrest and venue of custody of an arrestee by the police through the legal aid organisation in the district and the police station of the area concerned, within a period of 8-12 hours after the arrest;
the person arrested must be made aware of the right to have someone informed of his arrest or detention as soon as he is arrested or detained;
an entry must be made in the diary of the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest, and the names and particulars of the police officials in whose custody the arrestee is;
the arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if present on his/her body, must be recorded at that time. The inspection memo must be signed by both the arrestee and the arresting officer, and its copy provided to the arrestee;
the arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody, by a doctor on the panel of approved doctors appointed by the Director of the Health Services of the concerned state or union territory. The Director should prepare such a panel for all tehsils and districts;
copies of all the documents including the memo of arrest referred to above should be sent to the local judicial magistrate for his record;
the arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation;
a police control room should be provided to all the district and state headquarters where information regarding the arrest and the place of custody of the arrestee shall be communicated by the arresting officer within 12 hours of the arrest. In all police control rooms, this information should be displayed on conspicuous notice boards.
The law interpreted and laid down by the Court is binding throughout the country. Any violation of these directions is not only a violation of the law but also a direct contempt of the Supreme Court of India. Unfortunately, 18 years since the judgment and 8 years after the comprehensive amendment to the Cr.P.C., the Supreme Court, or any other Court in India, has yet to take action against a police officer that has violated these mandates. Thus, the directive has not become effective. And, it is not as if the Court has been unaware of such violations. The violation of the law and of the Court’s directive is brazen and is practiced across the country by police officers.
The fundamental question is why do the police continue violating the law concerning arrest and detention? The answer lies in the appalling reality that India’s police is neither equipped nor trained to undertake investigation as mandated by the law.
The police force across Indian states gets too little financial allocation for serving the people of a democracy to be able to follow the law. Therefore, police officers who arrest and detain a person on suspicion, due to lack of training and resources, resort to torture and other forms of custodial violence in their attempt to prove the case. It is state policy not to reform the police. And so the police continue violating law.
For the past 64 years, it has been the policy of the Indian state to keep the police under absolute political control. This control starts from the point of recruitment to appointments, promotions, transfers, and disciplinary actions taken against officers. As long as such servitude is expected, the police officers within the establishment keep their political masters, rather than ordinary people, as their priority. The police in India can, by no means, function according to the law.
In the prevailing culture of demoralisation and political servitude, it is only natural that corrupt police officers exploit the situation, selling their uniform and authority. This includes the use of torture or the threat of extrajudicial execution for extracting bribes. In fact, many police officers carry out targeted assassinations for the rich and powerful. Pompous declarations like “executive elimination is against the constitution …” by the judiciary will not end such actions.
Police officers also allow themselves to be used by political masters for laundering or whitewashing crimes committed by people in power. The investigation officer in Manoj’s murder case has also allegedly done so.
It was a police officer that approached the Supreme Court of India seeking the Court’s direction to salvage the police as an institution from unwarranted political control. Mr. Prakash Singh approached the Supreme Court, like Sajith approached the High Court of Kerala, seeking the Court’s direction to set down procedures that the government must follow to end the political servitude of his fellow officers.
Allowing Singh’s petition, a division bench of the Supreme Court, in September 2006, directed the government that it shall no more be the government’s privilege to transfer, promote, or take disciplinary actions against police officers purely based on political affinities. The Court directed the government to form independent bodies in each state that would be empowered to deal with these procedures.
The Court further said that the government must constitute a Police Complaints’ Authority in every state, headed by a former judicial officer, who will be empowered to accept, inquire, and recommend to the government remedial measures if any citizen has a complaint against the police. As expected, the government objected to this judgement and filed a review petition claiming that the Court had exceeded its mandate by intervening in administrative matters of the State. The Supreme Court did not even admit the petition, stating that all Chief Secretaries of state governments must report to the Court regarding complaints of the Court’s direction.
However, the reality is appointments, transfers, and disciplinary actions against police officers are still made based on political affinities. Not all states have constituted the Police Complaints’ Authority. In places where the authorities were established, they are non-functional or are lacking resources, and the authority remains only on paper.
For example, of the 418 complaints filed against the police before the Police Complaints’ Authority in Kerala, in only 17 cases has the Authority initiated an inquiry. The complaints relate to cases of custodial violence, including torture, custodial deaths, and of demands of bribe and protection money by the police. Yet, despite being put to notice, the Supreme Court, and other Courts in India, have failed to take any action against the government that has violated the Court’s directive.
In light of the above, it could be argued that the High Court of Kerala has lost a grip on reality. The people do not believe the police and judiciary are impartial and can deliver justice. In India, where torture, extrajudicial executions, and other forms of custodial violence, are rampant, police officers are seen as criminals in uniform, paid by the exchequer.
The observation by Justice Ramakrishan, that politicisation of the police has the potential to destroy the institution, is an understatement. Indian police is an institution that has been destroyed, and has reduced itself to a criminal enterprise that only serves the powerful and the rich. The Court keeps giving directions to the government and state institutions, and these directions continue to be violated. It is about time the Indian judiciary stopped its empty rhetoric.
(The writer is the executive director of the Asian Human Rights Commission and Asian Legal Resource Centre based in Hong Kong S.A.R.)
Sajith v. State of Kerala and others
All India Reporter 1978, Supreme Court p.1025
Per Viscount Sanky in Woolmington vs. DPP, 1935 AC 462, p.481
Report of the Law Commission submitted on 9 May 2002 reaffirming that any dilution of the principle of the burden of proof and the right to remain silent will violate the fundamental rights guaranteed under Article 20 (03) of the Constitution
 All India Reporter 1981, Supreme Court p.625
 All India Reporter 1997 SC 610
 Per Aftab Alam and C. K. Prasad, JJ, in writ petition filed by Mr. Javed Akthar, Mr. B.G. Varghese and others for a direction to order a CBI investigation into the 22 fake encounters that had taken place in Gujarat between 2002 and 2006. The case is pending final disposal.
 (2006) 8 SCC p.1